Mohamed v. Donald J. Nolan, Ltd.

967 F. Supp. 2d 647, 2013 WL 4807612, 2013 U.S. Dist. LEXIS 130674
CourtDistrict Court, E.D. New York
DecidedAugust 28, 2013
DocketNo. 12-CV-3139 (NGG)(JMA)
StatusPublished
Cited by6 cases

This text of 967 F. Supp. 2d 647 (Mohamed v. Donald J. Nolan, Ltd.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mohamed v. Donald J. Nolan, Ltd., 967 F. Supp. 2d 647, 2013 WL 4807612, 2013 U.S. Dist. LEXIS 130674 (E.D.N.Y. 2013).

Opinion

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

Before the court is Defendants’ motion to dismiss Plaintiffs Amended Complaint for failure to state a claim arguing, among other things, that Plaintiff’s legal malpractice claims are time-barred. Because Plaintiff filed these claims more than nine years after the alleged malpractice, and because Plaintiff has failed to adequately allege that Defendants fraudulently concealed their purported malpractice, New York and Illinois law dictate that the mo[650]*650tion to dismiss be GRANTED. As any attempt to amend would be futile, Plaintiffs Amended Complaint is DISMISSED WITH PREJUDICE.

I. BACKGROUND

A. Factual Background1

On October 30, 1999, Plaintiffs parents, Ay Rashad Ay Mohamed and Baria Zaki Mohamed, boarded EgyptAir flight 990 in Los Angeles, California, bound for Cairo, Egypt. (Am Compl. (Dkt. 4) ¶¶ 8-10.) In the early hours of October 31, 1999, EgyptAir flight 990 tragically crashed into the Atlantic Ocean approximately sixty miles south of Nantucket, Massachusetts, killing Plaintiffs parents. (Id. ¶¶ 11-12.)

In the weeks following the crash, Plaintiff and his family members were approached by an EgyptAir representative. (See id. ¶ 20.) Plaintiff accepted a sum of money described as “insurance” proceeds from EgyptAir. (See id. ¶¶ 20-25.) The EgyptAir representative never explained that this money was in exchange for a full release of all legal claims against EgyptAir or that Plaintiff and his family members should consult an attorney. (See id.)

On or about June 9, 2000 — after Plaintiff had accepted EgyptAir’s settlement offer — Defendant Donald J. Nolan (“Nolan”) contacted Plaintiff in an effort to have Defendant Donald J. Nolan, Ltd. d/b/a Nolan Law Group (“Nolan Law Group”) represent him in all claims arising from the EgyptAir flight 990 crash. (Id. ¶ 27.) On August 19, 2000, Plaintiff and the Nolan Law Group entered into a retainer agreement in which Defendants agreed to represent Plaintiff against EgyptAir, The Boeing Company (“Boeing”), and the Parker Hannifin Corporation (“Parker”). (Id. ¶¶ 28-29; see Retainer Agreement (Ex. A to Am. Compl. (Dkt. 4-1)).) In order to secure this agreement, Defendants “misled plaintiff and made representations as to actions that would be taken that they did not intend to complete,” including an attempt to vacate Plaintiffs release he had executed with EgyptAr. (Am. Compl. ¶¶ 31-33.)

On October 30, 2001, Defendants, on Plaintiffs behalf, filed suit in the Southern District of New York against EgyptAir, Boeing, and Parker identifying Plaintiff as his parents’ purported “personal representative”; this case was later transferred to the Eastern District of New York as part of a multidistrict litigation (the “Underlying Case”). (See id. ¶ 34.) At the time of filing, however, Defendants had not ensured that Plaintiff was properly appointed by a court as the personal representative of his parents’ estate. (See id. ¶ 35.)

While the litigation was pending, Defendant Nolan Law Group (via the attorney of record, Jerry Skinner) moved to withdraw as counsel on February 28, 2008. Mot. to Withdraw, In re Air Crash Near Nantucket Island, Mass., on Oct. 31, 1999 (“In re Crash”), No. 00-MD-1344 (BMC)(RML) (E.D.N.Y. Feb. 28, 2008), Dkt. 455.2 On [651]*651June 27, 2008, Plaintiff noticed his consent to Defendants’ motion to withdraw. Mohamed Aff., id. (E.D.N.Y. June 27, 2008), Dkt. 507. And on August 15, 2008, the Honorable Brian M. Cogan granted Defendants’ motion. Order, id (E.D.N.Y Aug. 15, 2008), Dkt. 519, at 1.

On March 29, 2010, Judge Cogan, on motion of the defendants in the Underlying Case, dismissed Plaintiffs action on the ground that he had not been timely appointed the personal representative of his parents’ estate and therefore lacked the capacity to sue. {See Mar. 29, 2010, Mem. & Order (Ex. C to Am. Compl. (Dkt. 4-3)) (“Underlying Dismissal”) at 7-8.) Judge Cogan reasoned that because Plaintiffs claims were subject to the Death on the High Seas Act (“DOHSA”), his failure to be properly appointed the personal representative of his parents’ estate by October 31, 2002 — the end of the three-year statute of limitations period that began to run from his parents’ death, see 46 U.S.C. § 30106 — required dismissal. {See Underlying Dismissal at 8-9 & n. 4.) In doing so, Judge Cogan rejected Plaintiffs attempt to characterize his nearly ten-year delay as “justified” by Defendants’ alleged malpractice in failing to secure Plaintiffs personal representative status. {See id. at 9-10 (“Having chosen to retain his attorney, plaintiff is responsible for his attorney’s negligent conduct or bad advice in connection with the action.”).) Judge Cogan noted that Plaintiffs attempts to “obtain personal representative status since 2001 indicate[d] that he was personally aware that he did not have the right to bring the action without first becoming representative of his parents’ estates.” {Id. at 10.)

B. Procedural History

On June 22, 2012, Plaintiff, invoking the court’s diversity jurisdiction, filed his Complaint seeking compensatory and punitive damages against Defendants for their alleged malpractice, (Compl. (Dkt. 1).) On August 1, 2012, Plaintiff filed an Amendment Complaint. (Am. Compl.)

On January 4, 2013, Defendants filed the fully-briefed motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), which included: (1) their memorandum in support (Def. Mem. (Dkt. 22)); (2) Plaintiffs opposition; (PL Opp’n (Dkt. 23)); and (3) Defendants’ reply (Def. Reply (Dkt. 26)).

On January 29, 2013, Plaintiff moved for leave to file a sur-reply. (Pl. Sur-Reply (Dkt. 27).) Over Defendants’ objection {see Jan. 30, 2013, Def. Ltr. (Dkt. 29)), the court granted Plaintiffs application (Feb. I, 2013, Order (Dkt. 30)) and permitted Defendants to submit a sur-sur-reply {see Feb. 5, 2013, Order (Dkt. 33)), which they filed on February 12, 2013 (Def. Sur-SurReply (Dkt. 34)).

II. STANDARD OF REVIEW

In considering a motion to dismiss for failure to state a claim for which relief can be granted filed under Federal Rule of Civil Procedure 12(b)(6), a court must assume all the alleged facts to be true and construe the complaint in the light most favorable to the plaintiff. See In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007). To survive the motion, a claim must be more than a mere recitation of the elements of a cause of action or series of legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint instead must provide enough factual content that, when taken as true, would allow a court to draw a “reasonable inference” that the plaintiff is entitled to relief. Id. at 678, 129 S.Ct. 1937.

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967 F. Supp. 2d 647, 2013 WL 4807612, 2013 U.S. Dist. LEXIS 130674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mohamed-v-donald-j-nolan-ltd-nyed-2013.